January 2021 Ogletree OFCCP Bulletin

Here are the latest developments from the Department of Labor’s Office of Federal Contract Compliance Program (OFCCP).

New OFCCP director. Jenny Yang, a former member of the US Equal Employment Opportunity Commission (EEOC), recently replaced Craig Leen as director of the OFCCP. Yang was with EEOC from 2013 to 2018, initially as EEOC commissioner and later as vice chairman and chairman from 2014 to 2017.

Section 503 Focused Review Report. OFCCP recently published its annual report “Section 503 Focused Reviews Fiscal Year 2020”. The report shall describe the objectives of the targeted review program under Section 503, the guidance provided in anticipation of the reviews, the results of those reviews and the lessons learned from the reviews. In the report, OFCCP found that Section 503 Focused Reviews did not find any discrimination or breach of reasonable accommodation. The report lists the five most common violations identified in Section 503 Focused Reviews.

1. Failure to adequately contact and positively recruit people with disabilities who were appropriately designed to effectively recruit skilled people with disabilities;

2. Failure to invite applicants and staff to identify themselves as a person with a disability;

3. Failure to document the calculations or comparisons relating to applicants and recruitment under 41 CFR 60-741.44 (k) and to retain such data for three (3) years;

4. Failure to design and implement an acceptable audit and reporting system that will measure the effectiveness of its positive action program; and

5. Failure to develop and submit acceptable AAPs and support data in accordance with Section 503. “

Legal disputes against the exemption. On January 8, 2021, the final regulation of the OFCCP to implement the legal requirements regarding the religious exemption of the equality clause came into force. This rule received much discussion as OFCCP received over 100,000 comments during the 30-day public comment period. Concerns about this new rule were raised when the new government took office on January 20, 2021. Just a day after the inauguration on January 20, 2021, separate lawsuits were filed on both sides of the country to repeal the rule and prevent the Department of Labor from advancing the rule in any way. A lawsuit was jointly filed in the United States District Court for the New York District by attorneys general in 14 states (New York, California, Colorado, Connecticut, Illinois, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, North Carolina, Pennsylvania and Vermont) and the District of Columbia. The other lawsuit was filed in the United States District Court for the Oregon District.

Final rule on procedures for discrimination decisions. On November 10, 2020, OFCCP published final rules on procedures to resolve potential discrimination in the workplace in the Federal Register. According to the OFCCP, the last rule, entitled “Non-Discrimination Obligations of Federal Contractors and Subcontractors: Procedures to Eliminate Potential Discrimination in Employment”, increases clarity and transparency for federal contractors, sets clear parameters for OFCCP resolution procedures and improves the efficient enforcement of equality laws on employment opportunities . “The new rule also includes guidelines for issuing Advance Notices (PDN) and Violation Notifications (NOV). In contrast to the announcement of the proposed rule creation, the final rule defines “qualitative” and “quantitative” evidence and extends the time it takes contractors to respond to PDNs to 30 days (from 15).

Revoked Executive Order 13950 on Racial and Gender Stereotypes. On January 20, 2021, on his first day in office, President Biden issued Executive Order (EO) 13985 “The Federal Government’s Promotion of Racial Justice and Support for Underserved Communities”, revoking EO 13950 “Combating Racial and Gender Stereotypes”. “Which restricted the content of diversity-related workplace training courses for certain federal agencies. Under this new executive order, promoting justice across the federal government can “create opportunities for the improvement of communities that have historically been underserved,” and “each agency must assess whether and to what extent their programs and strategies perpetuate systemic barriers to opportunity and benefits for people of color and other underserved groups. “On December 22, 2020, the United States District Court for the Northern District of California issued a state-wide injunction prohibiting OFCCP from transposing, enforcing, or enforcing Section 4 of EO 13950. As a result, OFCCP closed all complaints regarding non-compliance with EO 13950, resolved its Frequently Asked Questions about the revoked EO, and closed its phone line and email address to address EO 13950 complaints.

OFCCP publishes the year 2020 in retrospect. On January 4, 2021, OFCCP looked back on the past year of enforcement and stated: “[g]It’s been a challenging year after the coronavirus pandemic, “but the agency” responded quickly and effectively, adapting to the new conditions by granting extensions to federal contractors, increasing compliance support and reach, and virtual compliance. Conducted assessments. “The OFCCP’s 2020 report quoted:

1. “Effective Enforcement” (including “Record Monetary Settlements” and “Expanded Focused Reviews”);

2. “Rulemaking”; (including the final non-discrimination rule for federal contractors and subcontractors, the final religious exception rule, and the final TRICARE rule;

3. “Increased transparency” (including an updated handbook on compliance with federal treaties and new guidelines)

4. “Improved efficiency” (including updated guides for technical support and early resolution procedures)

5. Supported Equal Opportunities in Employment (including the Historically Black Colleges and Universities initiative and Indian and Native American employment law).

© 2020, Ogletree, Deakins, Nash, Smoak and Stewart, PC, All rights reserved.National Law Review, Volume XI, Number 32